Today Among Our Conservative BettersComments
As if to prove the wisdom of their colleague Justice Thomas, three conservative justices embarassed themselves at the gerrymandering oral arguments on Tuesday. The most egregious, of course, was Gorsuch:
The argument had gone on for nearly an hour when Gorsuch began a question as follows: “Maybe we can just for a second talk about the arcane matter of the Constitution.” There was a rich subtext to this query. Originalists and textualists such as Gorsuch, and his predecessor on the Court, Antonin Scalia, often criticize their colleagues for inventing rights that are not found in the nation’s founding document. Gorsuch’s statement that the Court should spare “a second” for the “arcane” subject of the document was thus a slap at his ideological adversaries; of course, they, too, believe that they are interpreting the Constitution, but, in Gorsuch’s view, only he cares about the document itself.
Gorsuch went on to give his colleagues a civics lecture about the text of the Constitution. “And where exactly do we get authority to revise state legislative lines? When the Constitution authorizes the federal government to step in on state legislative matters, it’s pretty clear—if you look at the Fifteenth Amendment, you look at the Nineteenth Amendment, the Twenty-sixth Amendment, and even the Fourteenth Amendment, Section 2.” In other words, Gorsuch was saying, why should the Court involve itself in the subject of redistricting at all—didn’t the Constitution fail to give the Court the authority to do so?
Ruth Bader Ginsburg, who is bent with age, can sometimes look disengaged or even sleepy during arguments, and she had that droopy look today as well. But, in this moment, she heard Gorsuch very clearly, and she didn’t even raise her head before offering a brisk and convincing dismissal. In her still Brooklyn-flecked drawl, she grumbled, “Where did ‘one person, one vote’ come from?” There might have been an audible woo that echoed through the courtroom. (Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments.)
This really is the definitive Neil Gorsuch: investing an enormous reserve of self-regarding condescension in a transparently specious argument beloved of third-string legal blog commenters. Even the weakest 1L at Cooley presumably understands within a month or so of con law that the broad clauses of the Constitution have to be applied to specific cases not mentioned as such in the text of the Constitution, and applying broad principles requires narrower rules and tests also not found in the text of the Constitution. “Where does the Constitution say precisely that the Court can intervene in state-drawn legislative districts CHECKMATE LIBS” is argumentation on a level with saying that because the First Amendment doesn’t mention the internet the Supreme Court would have no legitimate grounds for intervening if the government shut down nytimes.com. It is trivially obvious, as RBG implied, that when one consults the ARCANE document in question the 1st, 14th and 15th Amendments as well as the guaranty clause potentially render state electoral districts unconstitutional and hence potentially justify the exercise of judicial review. You can reasonably argue that intervention is not justified in this particular case, but Gorsuch’s argument is just idiotic.
Meanwhile, Chief Justice Roberts was smoother, going with some silly fake anti-intellectualism and some remarkably disingenuous nonsense about how intervening in this case might look political to the general public, which he would never do (note: offer void if the decision clearly helps the Republican Party.)
And, finally, reasonable, moderate, nonpartisan, thinking-person’s conservative Sam Alito:
“You paint a very dire picture about gerrymandering and its effects,” Alito said, “but I was struck by something in the seminal article by your expert, Mr. McGhee, and he says there, ‘I show that the effects of party control on bias are small and decay rapidly, suggesting that redistricting is at best a blunt tool for promoting partisan interests.’ So he was wrong in that?”
The question baffled Smith, who said he would need to see the context.
“Well,” Alito retorted, “that’s what he said.”
No, it isn’t.
I called Eric McGhee, the expert, after the argument. The quote Alito pulled was not from the “seminal article” McGhee co-wrote proposing the legal standard for gerrymandering at the center of the case. It was from an earlier McGhee paper, using data from the 1970s through 1990s. In the paper at the center of the case, by contrast, “we used updated data from the 2000s,” McGhee told me, “and the story is very different. It’s gotten a lot worse in the last two cycles. . . . The data are clear.”
Why would Alito resort to this sleight of hand? Perhaps because it’s clear that if he stuck to the facts, he’d have to acknowledge that the growing abuse of gerrymandering threatens democracy.
Hopefully the Court doesn’t actually enforce the Constitution in this case — it might make the Court look political!